Dare v Pulham

High Court of Australia Murphy, Wilson, Brennan, Deane and Dawson JJ. Dare v Pulham [1982] HCA 70

ORDER Appeal allowed with costs. Judgment of the Full Court of the Supreme Court of Victoria varied by setting aside the orders in respect of the appeal to that Court and instead order that the appeal be dismissed with costs.

The Court delivered the following written judgment: -

Dec. 4 Murphy, Wilson, Brennan, Deane and Dawson JJ.

This appeal is brought by special leave against a judgment of the Full Court of the Supreme Court of Victoria. The Full Court set aside in so far as it refers to damages a judgment of O'Bryan J. entered upon a verdict of a jury and ordered a new trial limited to damages. The plaintiff in the action, the present appellant, was a jockey who suffered personal injury when he was struck by a motor vehicle on 5 September 1977. The jury found the defendant in the action, the present respondent, guilty of negligence, assessed the total amount of the plaintiff's damages at $300,000, but found further that the plaintiff was guilty of contributory negligence and that it was just and equitable that those damages should be reduced by 30 per cent. To the $210,000 thus awarded $5,000 damages in the nature of interest was added and judgment was entered in the sum of $215,000 with costs to be taxed.

The respondent appealed to the Full Court against the jury's assessment of damages, contending that the amount assessed was so large that the jury must, in some way, have misconducted itself. The major component of the appellant's damages was his loss of earning capacity. Evidence was admitted at the trial that he had been earning $160 to $170 per week gross for riding track work, and that he had three or four rides at weekday country meetings and five or six rides at Saturday country meetings. There were two or three country meetings a week, and it seems that twelve to fifteen losing rides per week was a figure which the jury was entitled to consider in assessing his loss of earnings. Although a winning ride would be a bonus, that number of losing rides at the current riding fees together with the earnings from trackwork could yield gross earnings of $520 to $620 per week. The appellant had not proposed to continue riding after the age of 50, but there was a reasonable expectation that he would then become a stable foreman, a position in which the earnings amounted to $250 gross per week. He had an ambition to be a trainer, but he may not have achieved that ambition. He was aged 37 at the time of his accident, 41 at the time of the trial, so that he had nine or ten years of work as a jockey before seeking other employment.

In the Full Court, counsel for the plaintiff sought to support the jury's assessment by taking a round figure of $300 per week as the plaintiff's net earnings until the age of 65. After discounting this amount and allowing for the vicissitudes of life, it was submitted that, on the evidence led at the trial, $200,000 was a reasonable figure at which to assess lost earning capacity and an allowance of $100,000 for future medical needs, pain and suffering and special damages was in no way excessive. On this approach, it was submitted that the appeal to the Full Court should fail.

Shortly prior to the trial, however, the plaintiff had furnished the defendant with particulars of his loss of earning capacity in accordance with 0.19, r. 5a of the Rules of the Supreme Court. That rule reads:

Notwithstanding anything to the contrary in Rule 5 in all actions in which the damages claimed by the plaintiff consist of or include damages in respect of personal injuries to any person the pleading shall state:

(a) particulars, with dates and amounts, of all earnings lost in consequence of the injuries;

(b) particulars of any loss of earning capacity resulting from the injuries;

(d) the name and address of each of the plaintiff's employers commencing from the day being twelve months before he sustained the injuries complained of, the time of commencement and the duration of each such employment and total net amount, after deduction of tax, that was earned in each such employment.

The particulars provided by the plaintiff included the following: Loss of Earnings:

At the date of the accident the Plaintiff was self employed and held an "A" Class Jockey's Licence. Had it not been for the accident the Plaintiff estimates that he would have earned approximately $150.00 net per week from the date of the accident to date, making a total loss of $28,000.00.

The Plaintiff was born on the 2nd January, 1940 and is now aged 41 years. By reason of his injuries sustained in the accident the Plaintiff's capacity to earn income has been destroyed. He will be unable to resume his employment as a Jockey, or any other employment. Had it not been for the accident the Plaintiff intended to ride until he attained the age of at least 50 years. Thereafter he intended to engage in other remunerative work until the normal retiring age of 65 years. The Plaintiff estimates that at the present time he would be able to earn at least $200.00 net per week and claims this amount per week from to date to age 65 years for loss of earning capacity.

The Full Court understood these particulars as meaning that the plaintiff was claiming much less by way of lost earning capacity than the $300 net per week until the age of 65 for which counsel contended in seeking to uphold the jury's assessment. For the purposes of this appeal that understanding may be accepted, although the expression of the net weekly loss of "at least $200" means that something over $200 per week was claimed. When the plaintiff's counsel addressed the jury, he did not put to them the figure of $300 per week, but discussed earnings of the order of $200 to $250 per week less tax of about $50 per week. But conservative advocacy does not forfeit a plaintiff's right to the jury's own assessment of damages upon the evidence, unless counsel for the plaintiff abandons his client's claim in excess of a stated sum. There was no abandonment of the plaintiff's claim in this case. However, the Full Court held that the jury's assessment could not be allowed to stand, in the light of the particulars furnished and the address of counsel, though their Honours accepted the submission that there was evidence to support the assessment. Starke J., with whom Murphy J. agreed, said:

the question that arises is how far a respondent in a court of appeal seeking to sustain an award of damages may depart from the particulars of pleadings and from the conduct of the case at first instance. It seems to me as a matter of fundamental principle that, if an appellant is misled by the particulars and by the conduct of the case of the respondent below, and is thus deprived of a right which he may have otherwise exercised below and which is now denied to him, the respondent is bound on appeal by such particulars and such conduct. In this case, for instance, if counsel for the respondent had gone beyond the pleaded particulars during his final address to the jury, counsel for the appellant might have sought a right of further reply, he might have sought an adjournment, he might have sought the discharge of the jury, he might have wished to pay into court a sum or a further sum of money; no doubt there are other remedies that might have been open to him. It might be argued that by failing to object to evidence which went beyond the particulars that the appellant cannot now object to the endeavour of the respondent to use such evidence so as to sustain the judgment. However, the evidence relating to earnings was all given as gross figures and, moreover, came out in bits and pieces. The accumulative effect of such evidence may not have had any impact on counsel for the appellant, particularly as counsel for the respondent in his final address made no attempt to go outside his particulars. And later: It is not necessary in this case to determine the question of counsel for respondent attempting to support the verdict below, where he has clearly below conducted his case in a manner beyond the particulars given, and I refrain from doing so, nor do I say that in every case where counsel at first instance in the conduct of his case goes beyond his particulars the verdict can never be sustained by reference to evidence which goes beyond the particulars given. In every case it must, I think, be a question of whether the appellant has been deprived below of some substantial right which is no longer available to him on appeal. Brooking J. said: The tribunal of fact, be it judge or jury, is, in general, bound by the pleadings and particulars. The fact that the pleadings and particulars may not in fact be read to the jury, and the refusal of appellate courts to interfere with jury verdicts where there is some evidence to support them, must not be allowed to obscure the limiting effect, even in jury trials, of the documents in which each party sets out his case. A court of appeal will not treat reliance on these documents, which are, after all, the backbone of the litigation, as pedantry or mere formalism While evidence was led for the plaintiff which, pieced together, and taken in conjunction with tax tables, was capable of sustaining a finding that but for the accident the plaintiff would in the future have earned on an average much more than $200 net per week, it was not possible to say of any given piece of evidence that it was admissible only if the plaintiff was to be permitted to travel outside the claim made in his particulars in respect of lost earning capacity for the future.

Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it (Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In liq.) [1] ; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial (Miller v. Cameron [2] ); and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings (Gould and Birbeck and Bacon [3] ; Sri Mahant Govind Rao v. Sita Ram Kesho [4] ). But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed (Mummery v. Irvings Pty. Ltd. [5] ), though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence (Leotta v. Public Transport Commission (N.S.W.) [6] ).

1. (1916) 22 C.L.R. 490, at p. 517. 2. (1936) 54 C.L.R. 572, at pp. 576-577. 3. (1916) 22 C.L.R., at pp. 517, 518. 4. (1898) L.R. 25 Ind. App. 195, at p. 207. 5. (1956) 96 C.L.R. 99, at pp. 111, 112, 127. 6. (1976) 9 A.L.R. 437, at p. 446; 50 A.L.J.R. 666, at p. 668.

After the introduction of 0.19, r. 5a the view that particulars would not ordinarily be required in respect of a plaintiff's incapacity for work (cf. Potter v. Metropolitan Railway Co. [7] was no longer tenable. In any event, that view could not be sustained without qualification. It was qualified at least by the principle expressed by Lord Donovan in Perestrello e Companhia Limitada v. United Paint Co. Ltd. [8] :

if a plaintiff has suffered damage of a kind which is not the necessary and immediate consequence of the wrongful act, he must warn the defendant in the pleadings that the compensation claimed will extend to this damage, thus showing the defendant the case he has to meet and assisting him in computing a payment into court. 1. (1873) 28 L.T. 735. 2. [1969] 1 W.L.R. 570, at p. 579; [1969] 3 All E.R. 479, at pp. 485-486.

The introduction of 0.19, r. 5a required that the defendant be given notice of all the matters referred to in that rule, whether or not notice would otherwise have been required. But the rule does no more than extend the ambit of the particulars which a plaintiff is a required to furnish. The rule does not create a duty to state a limit on the amount which a plaintiff claims where that duty does not otherwise exist (cf. London and Northern Bank Ltd. v. George Newnes [9] ); nor does the rule purport to confine the range within which the jury is to quantify a plaintiff's general damages (cf. Admiralty Commissioners v. S. S. Susquehanna [10] per Viscount Dunedin). In the event that evidence, admitted without objection, tends to establish a claim for damages higher than the claim made in the particulars, the defendant is placed in no stronger position to avoid an assessment based upon that evidence than he would be if a verdict was returned on facts not alleged in particulars but admitted without objection at the trial to establish the cause of action pleaded: see Leotta [11] . The present case is similar to Domsalla v. Barr [12] where the plaintiff sought damages on a footing of which particulars ought to have been given, namely, that he would have gone into business on his own account if he had not been injured. There, the plaintiff led evidence of that matter without having given particulars but without objection. Edmund Davies L.J. (as he then was) referred to what Lord Donovan had said in Perestrello and went on to say [13] :

By adverting to the plaintiff's intention to set up in business on his own account, there was being introduced into this case an entirely new element of which there was no adumbration at all in the statement of claim. For that reason, in my judgment, the plaintiff was going outside his pleading, and objection might properly have been taken to the leading of such evidence. The objection, however, was not made, and accordingly it is not right, in my judgment, for this court to say now it will not have regard to such evidence as was called in support of this new, unpleaded matter. 1. (1900) 16 T.L.R. 433. 2. [1926] A.C. 655, at p. 661. 3. (1976) 9 A.L.R., at p. 446; 50 A.L.J.R., at p. 668. 4. [1969] 1 W.L.R. 630; [1969] 3 All E.R. 487. 5. [1969] 1 W.L.R., at p. 635; [1969] 3 All E.R., at p. 493.

In the present case, not only was the evidence upon which the jury assessed the damages not objected to: it was not open to objection. The particulars which the plaintiff had furnished gave notice to the defendant that his earning capacity had been destroyed, that he would have worked as a jockey until he was 50 and that he had intended to get other remunerative work to the age of 65. His evidence at the trial corresponded with those particulars but, favourably viewed, tended to show a larger net weekly loss than the amount which the plaintiff claimed he would have earned. True it is that his counsel continued to advance in argument the more conservative figure, but the jury were invited to assess the damages at whatever figure they thought right upon the facts which they found. They were so directed, and rightly. Damages were at large, not confined by the particulars furnished or by counsel's submissions. The evidence which tended to show a larger loss than the loss specified in the particulars did not take the defendant by surprise or, if it did, it did not lead to any application for a discharge of the jury or an adjournment to enable him to contest it. The defendant could not have been misled as to the significance of the evidence in the minds of the jury. Even if counsel for the plaintiff had expected, and if he had led counsel for the defendant also to expect, that the jury would assess damages at a lower amount than the amount they chose, the unfulfilled expectation of counsel does not establish misconduct on the part of the jury.

The judge was not invited by counsel to direct the jury to limit the range of general damages. Once the issue of general damages was submitted to the jury as a question at large for their determination and there was no demur from either party as to the question so submitted to them - and we do not suggest that there was any error in submitting the matter in that way - it was too late to complain that the particulars advanced a limited claim for damages. The parties, bound by the course which they took at the trial must accept the answer given by the jury to the question of damages submitted in the form to which they assented or in which they acquiesced (Rowe v. Australian United Steam Navigation Co. Ltd. [14] ).

The verdict of the jury is not open to challenge except upon well-established grounds none of which applies in this case (see Phillips v. Ellinson Brothers Pty. Ltd. [15] ; Australian Iron & Steel Ltd. v. Greenwood [16] ). The respondent did not seek to uphold the Full Court's order on the ground that the evidence did not support the assessment. Nor was that ground embraced by the Full Court. It was not submitted that the assessment was affected by any wrongful admission or rejection of evidence or by any misdirection by the trial judge. The jury's assessment cannot be set aside on the grounds of inconsistency with particulars of general damages - particulars which the jury did not see. Those particulars, unknown to the jury, cannot be relied on to show that the jury failed to perform their duty in assessing damages.

1. (1941) 65 C.L.R. 221, at p. 228. 2. (1962) 107 C.L.R. 308, at pp. 315, 322.

The appeal must be allowed and the judgment of the trial judge restored.